But won’t live without them.  There have been a  few  posts  lately that have (inexplicably) brought out a wild crowd of readers and commenters.  A few post mortum thoughts seem appropriate.

First, it’s important to recognize that this is not a representative sampling of the lay view of lawyers.  These are people who have sought out the subject to read further about it, then gone the extra step of leaving a comment.  Most people, lacking either a strong interest in the subject or a need to express themselves on it, particularly to say “me too,” won’t bother.  Others, who might disagree with the majority, won’t comment for fear of being subject to ridicule.  It was that type of crowd.

But that said, these comments offer an insight to what a not unsubstantial number of people think and feel about the law and those who practice it.  These are the same people who sit on juries and proclaim that they can be fair and impartial.  They absolutely believe that they are fair and impartial; that they happen to hate the law and lawyers is, in their eyes, a fair  and well-deserved statement.

In the course of reading comments yesterday, I sent an email around to some of my civil law blawging buddies, asking why they don’t jump in and correct some of the misperceptions and misunderstandings.  One of the things that the comments revealed with the lack of distinction between various types of lawyers and practice areas; Not all lawyers sue people.  Some defend them.  Some criminally, other civilly.  In the public eye, and according to a few of the conspiracy theorists, we’re all in this together.

It made me wonder how this impacts on the agenda of the tort reformers.  Walter Olsen at  Overlawyered posted about a jury run amok in a civil suit against Ford, where the jury found liability against a party that no one suggested was liable.  While there are plenty of legitimate grievances against the law and lawyers, much of the criticism requires a certain degree of comprehension to appreciate what is wrong and why. 

Having whipped up the mob, have the Overlawyered guys lost control of their sympathizers?  It seems that their directed attack on those things that they challenge in the law has morphed into some vague but pervasive hatred.  Some of the comments reflect a belief that the law itself, for nonspecified reasons, has become the monster.  Others suggest that the entire legal profession is comprised of evil, malevolent people. 

How do the reformers stop the mob from burning down their houses when they come for the lawyers?  They have thrown Pandora’s box wide open.  But did they really mean to suggest that all laws and lawyers are evil?

But there’s good news in this as well, by my calculations.  I few years back, I was involved in a small consortium of lawyers who sought to put together a business designed to create an alternative dispute resolution mechanism, premised on many of the reforms that people believe they now want.  It was fast, inexpensive and effective.  One of the key components was that lawyers were not required.  In fact, they would be highly discouraged, since lawyers only seem to gum up otherwise good ideas.

The idea was put through the rigors of a number of focus groups.  We learned things that shocked us. 

One thing we learned was that this anger toward the law and lawyers is, indeed, pervasive.  People believe that the law is a big game, and the one with the most money wins.  People believe that neither the law nor lawyers have any integrity, and our job is comprised of playing the game (read lie and cheat) better than the other lawyer.  So far, not too shocking.

We also learned that people believed that “everyone” really knows who is right and wrong before hand, and the entirety of lawsuits is a sham played out at the behest of, and for the benefit of, the legal profession.   Of course, when pushed on hypothetical scenarios, the same people who believed that right and wrong are absolutes ended up on opposite sides of the issue, but even when confronted with that reality, simply shut down and rationalized that they were right and the other guy was crazy.  People refused to accept that (1) they could be wrong, or (2) reasonable people can differ.  Anne Reed, take note.

So far, it seemed that our concept should be received with open arms, perhaps even joy and adoration.  But then came the shock.  Despite all of these beliefs, the participants in these focus groups were almost uniformly in agreement about one thing:  If they were going to go to have a “trial” of their dispute, they wanted a lawyer.  Even though this system was designed so that litigants would not need a lawyer, they didn’t care.  They wanted a lawyer.

At the end of the day, even the lawyer haters want counsel.  Indeed, it makes a great deal of sense.  For all the angst and anger, the belief that lawyers are the scum of the earth, they STILL wanted a lawyer on their side if they headed into battle.  Why?  Because the fear of having to prevail on their own, being put to the test of their persuasive skills in real life, left them quivering bowls of jello. 

People, once put to the test, exposed their underlying fears.  They asked, “but what if the other guy can talk better than me?”  “But what if I get nervous?”  “What if I forget to say something important?”  “How do I know what I’m supposed to say?”  “How am I supposed to know the law?”

All good questions.  But they fly in the face of the complaints about lawyers and the law.  It’s easy to rail against lawyers and the law when you have nothing on the line.  The comments are cathartic, allowing people who have been fed the belief that miserable things happen to good people because of bad lawyers, but the catharsis stops the second it’s their turn on the docket.  Then, they want the best, meanest, toughest lawyer around.  They don’t want to lose (especially since they are, in their own minds, invariably right), and they don’t trust themselves, their skills, their minds, to win the day.

This comports to a degree with my own anecdotal experience with people who have negative feelings about lawyers and the law.  My clients may attribute positives to me, because I am THEIR lawyer, but the lawyer for the other side is still evil.  Largely, this is just a self-serving attitude.  Since they are right, and I am helping them, I’m not a bad guy.  But the rest of the profession remains evil.  There is still the issue of why THEY should have to pay, since they didn’t do anything wrong, but accept that as a necessary evil since they can’t get legal representation any other way.

I would expect that personal injury lawyers, for example, face the same situation, even when their clients are “tort reform” believers.  When they are hurt, their cause is just because they are absolutely certain that someone else is at fault, and hence can separate their “philosophical” belief from their personal circumstances, the latter being specifically good for them and hence inherently just. 

But this does little to calm the wave (tsunami, tidal or ripple) of antagonism by those who are not personally involved in litigation, and view the legal system as society’s plague. 

It’s ironic that individual cases, played large by the media, have such an influence on people’
s perceptions.  If they weren’t anomalies, they wouldn’t get any air time at all.  Yet these become the norm in people’s minds, and hence the measure of the law.  Worse yet, they are almost always used in a way that is self-serving by the media, to prove a point of how bad, crazy or wrong the law is.  But if it were presented otherwise, it would make for a lousy story and do nothing to support the proponent’s agenda.  Truth can be incredibly boring.

So there you have it.  Make of it what you will.